| People v Harvey |
| 2019 NY Slip Op 02250 [170 AD3d 1675] |
| March 22, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Rashod Harvey, Appellant. |
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Lisa Gray of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.)rendered September 18, 2014. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree and tampering with physical evidence.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the period of postrelease supervision imposed for tampering with physical evidenceand as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) andtampering with physical evidence (§ 215.40 [2]). The charges arose from therecovery of a handgun in a house that defendant had exited just prior to being apprehended by thepolice. We reject defendant's contention that the evidence is legally insufficient to support hisconviction (see generally People vDanielson, 9 NY3d 342, 349 [2007]). Additionally, viewing the evidence in light of theelements of the crimes as charged to the jury (see id.), we conclude that the verdict is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]).
Defendant further contends that defense counsel was ineffective for failing to move tosuppress the handgun on the ground that police officers unlawfully seized him without therequisite reasonable suspicion of criminal behavior (see generally People v Moore, 6 NY3d 496, 500-501 [2006];People v De Bour, 40 NY2d 210, 215 [1976]; People v Burnett, 126 AD3d 1491, 1492 [4th Dept 2015]). Wereject that contention. It is well settled that "a showing that [defense] counsel failed to make aparticular pretrial motion generally does not, by itself, establish ineffective assistance of counsel"(People v Rivera, 71 NY2d 705, 709 [1988]; see People v Parker, 148 AD3d 1583, 1584 [4th Dept 2017], lvdenied 29 NY3d 1084 [2017]). "To prevail on a claim of ineffective assistance of counsel, itis incumbent on defendant to demonstrate the absence of strategic or other legitimateexplanations for counsel's failure to request a particular hearing. Absent such a showing, it willbe presumed that counsel acted in a competent manner and exercised professional judgment innot pursuing a hearing" (Rivera, 71 NY2d at 709). Furthermore, "[t]here can be no denialof effective assistance of trial counsel arising from counsel's failure to 'make a motion orargument that has little or no chance of success' " (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287[2004], rearg denied 3 NY3d 702 [2004]).
Here, the trial testimony established that police officers responded to a report of trespassingat a vacant house and, upon arrival, observed defendant run or walk briskly away from that householding his waistband in a manner that, based on the officers' knowledge and experience,suggested that defendant might be concealing a gun. Despite the officers' request for defendant tostop, defendant entered a neighboring house before emerging 10 to 15 seconds later, at whichpoint he was apprehended by the officers and placed in the back of a patrol car. The officers thenrang the doorbell at the neighboring house, received permission to enter, and observed thehandgun in plain view on the floor of the foyer.
Initially, defendant does not dispute that he lacked standing to challenge the officers' entryinto the neighboring house inasmuch as he did not live at that house and was at most a casualvisitor there (see People v Ortiz, 83 NY2d 840, 842-843 [1994]; People v Smith, 155 AD3d 1674,1675 [4th Dept 2017], lv denied 30 NY3d 1120 [2018]). Further, defendant's conclusoryassertion that the discovery of the handgun was not attenuated from the officers' alleged illegalaction in seizing him is unsupported by the record. It is well settled that "only evidence which hasbeen come at by exploitation of [law enforcement] illegality should be suppressed" (People vArnau, 58 NY2d 27, 32 [1982], cert denied 468 US 1217 [1984] [internal quotationmarks omitted]; see People vAshford, 142 AD3d 1371, 1372 [4th Dept 2016]; People v Holmes, 63 AD3d 1649, 1650 [4th Dept 2009], lvdenied 12 NY3d 926 [2009]). Even assuming, arguendo, that the officers' actions in seizingdefendant were illegal, we conclude that the observations that led the officers to seek permissionto enter the neighboring house were made prior to the seizure of defendant. Thus, inasmuch asdefendant would not have been able to establish that the alleged illegal conduct was causallyrelated to the discovery of the handgun (see Ashford, 142 AD3d at 1372), a motionseeking to suppress the handgun would have had little or no chance of success.
Contrary to defendant's additional contention, the sentence is not unduly harsh or severe, andwe decline defendant's request to exercise our power to reduce the sentence as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [b]). According to the sentencingminutes, however, Supreme Court imposed a period of postrelease supervision in connectionwith defendant's conviction of tampering with physical evidence. That was error inasmuch as aperiod of postrelease supervision is not authorized in connection with an indeterminate sentence(see Penal Law § 70.45 [1]; People v Lockett, 34 AD3d 1208, 1209 [4th Dept 2006], lvdenied 8 NY3d 882 [2007], denied reconsideration 9 NY3d 847 [2007]). Althoughthe issue is not raised by either party, we cannot allow an illegal sentence to stand (see People v Considine, 167 AD3d1554, 1555 [4th Dept 2018]). We therefore modify the judgment by vacating that period ofpostrelease supervision (see Lockett, 34 AD3d at 1209). Present—Whalen, P.J.,Smith, DeJoseph, Curran and Winslow, JJ.